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Commentary: Let the People See JusticeFor the good of the nation, the Supreme Court's oral arguments belong on television
Supreme Court Justice David Souter once famously told a congressional committee that "the day you see a camera come into our courtroom, it's going to roll over my dead body." But in this age of transparency, attorney Brian Wommack argues, isn't it high time we invited cameras, and thus the American people, into the Supreme Court? The public is missing out, he says -- and most of them probably have no idea what they are missing.
Legal Times2007-12-03 12:00:00 AM
Justice David Souter once famously told a congressional committee that "the day you see a camera come into our courtroom, it's going to roll over my dead body." The courtroom sketch artists may agree with the sentiment, but in this age of transparency, isn't it high time we invited cameras, and thus the American people, into the Supreme Court?
Cameras -- both still and moving -- met a hostile reaction back in 1965 in the famous Supreme Court case of Estes v. Texas. There the high court reversed the conviction of notorious financier Billy Sol Estes, finding that his right to due process had been violated because of the publicity his pretrial hearing generated. That hearing was covered live by both TV and radio, which all sides conceded had caused considerable disruption.
Today's technology makes it possible to broadcast a trial without disrupting the proceedings. Many states now allow cameras in their courtrooms, and federal courts have experimented with them as well. In all courtrooms where cameras are allowed, judges have the final say -- they may exclude cameras if the cameras might jeopardize a fair trial. But even with this safeguard to protect the rights of litigants, the Supreme Court has remained flatly opposed to cameras in its courtroom.
A SACRED CIVIC EVENT
The American public is missing out -- and most of them probably have no idea what they are missing. An oral argument before the Supreme Court is one of our sacred civic events. Each one considers a novel application of law with great consequence for the nation and for the individuals involved, and it does so with reverence, dignity and propriety. Why not allow coverage of this important government function, just as we televise congressional proceedings and presidential and agency press conferences?
Televising oral arguments would stimulate debate, engage the public in important issues, and offer a better understanding of our judicial system. It would let various constituencies with views on the issues being debated try to persuade and motivate a public that is now better educated.
And -- unlike back in 1965 -- televising the Supreme Court could be done with a minimum of disruption. Cameras can be operated remotely, or even by voice-activated controls, so a camera-person wouldn't even need to be in the room to capture the sights and sounds of justice being served.
Some say that the reason the public holds the Court in such reverence is because it is wrapped in mystery. Without cameras, it is impossible to air snippets out of context and difficult to poke fun at the justices or the proceedings.
This may be true, but as the public has increasingly high expectations of transparency for all institutions, the greater risk to the Court is to remain hidden away. Over time, I believe more and more people will wonder why the Court fears the sunlight, to the detriment of the institution.
Others argue that televising the oral arguments might taint the proceedings, as oral advocates and the justices themselves seek to "play to the camera" rather than staying on task. I don't doubt that cameras could be a bit distracting at first and would take some adjustment, but any good oral advocate knows that the only audience worth playing to is the Court itself. I doubt too many of them are willing to risk their argument to try to sway some audience outside the courtroom.
Some justices say that the unique collegiality of the Court would be disrupted by cameras. I would heartily agree if we were considering televising internal conferences, where justices discuss and debate cases. But we are talking about oral arguments, which are already public -- just not public enough because they are inaccessible to most Americans on most days. And, ironically, the more important the issue, the less chance an ordinary citizen has of getting one of the few seats available to the public.
The justices still could discuss and debate cases in the inner sanctums of the Court, far away from the cameras. Their ability to carefully consider the merits of each case would not be hindered just because oral argument itself is televised. And if America gets to see its justices and their wry and occasionally sarcastic comments at argument, I think that's a net positive.
INTO THE SUNSHINE
Justices themselves have opposed cameras in their courtroom at least partly because they treasure their anonymity. Who wouldn't prefer not being recognized in the Safeway?
But I don't think their own preferences about whether they are recognized should hold sway. They are all, by their willingness to serve on the Court, public figures, and many of them have been willing accomplices in raising their public profiles in recent years.
Justice Clarence Thomas, in publishing his new book (complete with A-list celebrities at the book party), has voluntarily stepped more into the sunshine, relinquishing whatever anonymity remained after his high-profile confirmation hearing. But even less-well-known justices, such as Ruth Bader Ginsburg, John Paul Stevens and Anthony Kennedy, have been making more public (and televised) speeches and appearances lately.
Not that their profiles are exactly high -- according to a 2003 Findlaw survey, 65 percent of Americans can't name a single member of the Supreme Court. That fact alone is reason enough to at least strongly consider a bit more coverage of this important institution.
I hold no doubt that cameras will one day come to the Supreme Court, and we will look back on today as quaint and outmoded.
Here's hoping that Chief Justice John Roberts Jr. -- the youngest chief in more than 200 years and the youngest member of the current Court -- will find a way to maintain the dignity of the Court while inviting the nation to get to know the Third Branch. As a product of the media age himself, as a frequent and successful oral advocate, and now as chief justice, Roberts is uniquely qualified to strike an appropriate balance between tradition and transparency.
It is a good and right thing for Lady Justice herself to be blindfolded, but it is time to remove the blindfold the Court has placed on the citizenry that it serves.
Brian Wommack is a lawyer and a senior vice president at Powell Tate in Washington, D.C. He helps clients communicate when facing high-stakes litigation, major crises, and public-policy battles.